The Expressive Function of Law and the Lex Imperfecta

Thomas A. J. McGinn

Legal scholars have developed the thesis that a law may convey a social meaning that reinforces or changes the norms of a community, beyond its role in establishing and enforcing rules. This is described as the expressive function of law. It is associated with the University of Chicago, though its adherents are spread more widely. At its core it invites us to consider how rules alter the social meaning of behavior, and in its more muscular forms it acknowledges and even promotes laws that create new norms of behavior. The ways in which individual scholars treat collective action problems, rational choice, and the role of government, vary considerably, however. This article suggests that the Romans themselves implicitly recognized the expressive function of law and indeed employed it with success. The principal example is the lex imperfecta. This is a term from antiquity, somewhat disputed, used to describe a statute that prohibits or discourages behavior without assigning a penalty or otherwise voiding the effects of the underlying acts. Other examples from antiquity are considered also.

Roman Legal Tradition, 11 (2015), 1–41

DOI 10.55740/2015.1

This work may be reproduced and distributed for all non-commercial purposes. Copyright © 2015 by Thomas A. J. McGinn. All rights reserved apart from those granted above. Roman Legal Tradition is published by the Ames Foun­dation at the Harvard Law School and the Alan Rodger Endowment at the University of Glasgow. ISSN 1943-6483.

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